Few areas of Wills law stir as much concern among practitioners as undue influence. The idea that a person’s last wishes could be threatened by another’s pressure, strikes at the heart of testamentary freedom. Yet the current legal test for proving undue influence in Wills is both outdated and, in practice, nearly impossible to satisfy. The Law Commissions recent report recognised this imbalance and proposes significant reform, reform that could shift how the courts assess and remedy this form of wrongdoing.
Current Law: An All or Nothing, Evidence Heavy Standard:
At present, the law on undue influence in Wills is entirely judge-made, it differs notably from undue influence in other areas of law, such as contract or equity. In the Wills context, undue influence is a subtle and narrow doctrine, rooted in historic authority.
The leading case is Wingrove v Wingrove (1885), in which the court defined undue influence as “coercion” such that the testator’s free agency is overborne, and they are “forced to do that which he or she does not desire”. This definition sets a high evidential threshold. It is not enough for a person to influence, persuade, or even emotionally manipulate the testator, what must be shown is outright coercion, equivalent to oppression or domination of the Will.
Unlike equitable undue influence, there is no presumption of undue influence in the testamentary context. Even when the relationship between the testator and beneficiary is one of the obvious power imbalances, such as carer and dependant, there is no reverse burden of proof. The burden is entirely on the person alleging undue influence to prove it, and that burden is extremely difficult to discharge, especially where the testator is deceased and unable to testify.
In practice, this means that undue influence is rarely established in probate proceedings. Allegations are common, but successful claims are exceptional. As the Law Commission observed, the current law under-protects vulnerable individuals and fails to deter devious behaviour, particularly where there is no one able or willing to challenge a suspicious Will.
The Law Commission’s Proposed Reform: A Statutory Cause of Action:
The Law Commission in Volume II: Draft Bill for a new Wills Act, proposes replacing the current common law test with a new statutory doctrine of undue influence, specifically tailored for the Wills context. The proposed test would mirror the equitable doctrine of undue influence, as developed in cases such as Royal Bank of Scotland Plc v Etridge (No 2) [2001], and would introduce two key pathways to challenge a Will:
- Actual undue influence: this would involve a direct factual inquiry into whether the testator’s decision was the result of improper pressure, manipulation, or influence that overcame their free will. This aligns with the current concept of coercion but allows for a broader evidential basis, such as persistent persuasion, isolation, or deception.
- Presumed undue influence: In line with equitable principles, the reform would allow for a presumption of undue influence to arise where,
- There is a relationship of trust and confidence between the testator and the alleged influencer; and
- The influencer benefits significantly under the Will.
Once this presumption is established, the burden would shift to the beneficiary to rebut it by demonstrating that the Will was made freely and independently.
The Commission argues that this dual approach strikes a better balance between protecting autonomy and safeguarding against exploitation. It would not lead to a flood of invalid Wills, but it would better equip the courts to address cases where exploitation is subtle, concealed, or carefully arranged.
Additionally, alongside the Bill, the Explanatory Notes clarify, the rationale for introducing a rebuttable presumption, what constitutes “reasonable grounds to suspect,” and protections to ensure that the autonomous decisions remain respected.
Why the Change Is Necessary: Justice, Prevention, and Real-World Application:
The current legal framework assumes that coercion is rare and easily recognised, but in practice, undue influence can take many forms. It may involve:
- Gradual psychological manipulation, such as isolating the testator from family.
- Emotional extortion, guilt tripping, or encouraging dependency.
- Threats of abandonment by carers or relatives.
- Withholding of medication, food, or support to exert control.
These scenarios often leave no clear “smoking gun” evidence. The courts, bound by precedence, may acknowledge suspicious circumstances but feel unable to intervene.
The Law Commission notes that many practitioners avoid running undue influence arguments altogether, opting instead for claims based on lack of capacity or knowledge and approval. Reform would provide a more viable route for justice, particularly where the testator was vulnerable but sane, and the influence stopped short of obvious coercion.
Moreover, introducing a presumption of undue influence in certain relationships would bring Wills law into line with other legal contexts, such as gifts and financial transactions, where presumptions help to deter abuse and promote fairness.
Limitations and Safeguards: Avoiding Overreach:
The Law Commission is cautious not to undermine testamentary freedom. The proposed reform does not suggest that all gifts to carers, children, or close friends should automatically be suspect. The presumption would only arise where a relationship of ascendancy or trust and confidence is established, this would typically require evidence of dependence, vulnerability, or past control.
Moreover, the presumption would be rebuttable. A beneficiary who is challenged could demonstrate that the testator acted freely, such as by showing independent legal advice, a longstanding intention to make the gift, or objective indications of autonomy.
In this way, the law would recognise the complexity of human relationships without treating generosity or gratitude as inherently suspicious.
Comparative Perspective: What Other Jurisdictions Do:
Several common law jurisdictions already apply an equitable or statutory undue influence test in the probate context:
- Canada applies a presumption of undue influence in Wills where certain relational factors are present.
- In New Zealand, courts apply the equitable doctrine directly to Will changes.
- Australia continues to apply a high threshold like England, but there have been calls for reform.
The Law Commission’s proposal would bring England and Wales more closely in line with these jurisdictions, while preserving essential protections.
Final Thoughts: A Fairer, Clearer, and More Protective Doctrine:
Undue influence is not always obvious. It may not involve threats or shouting, it may come dressed as love, care, or dependency. The law must be capable of identifying and remedying influence that is improper, even when it is devious or psychological.
By introducing a statutory doctrine of undue influence with both actual and presumed forms, the Law Commission offers a clearer, fairer, and more modern approach. It would enable courts to intervene in appropriate cases, without casting doubt on legitimate Wills made with consideration.
This reform, like others proposed in the report, aims to restore confidence in Wills as a reliable expression of autonomy, while ensuring that those who are most vulnerable are not left unprotected.
